Bills Digest no. 106 2005–06

Crimes Act Amendment (Incitement to Violence)
Bill2005

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

Passage History

The Crimes Act
Amendment (Incitement to Violence) Bill 2005 (the Bill) is a
private members Bill introduced by the shadow attorney-general, Ms
Nicola Roxon MP.

The purpose is to criminalise threats or the
incitement of violence against racial or religious groups. Criminal
liability will attach only to specific forms of behaviour threats
to cause physical harm, threats to cause physical damage, and
incitement to commit violence or damage property. The Bill proposes
criminal penalties of up to two years imprisonment for both
religious and racially based offences if a causal connection
between the conduct and element of race, colour, religion, or
national or ethnic origin is proved.

According to the
Explanatory Memorandum, the Bill is designed to address
perceived shortcomings in the Anti-Terrorism Act (No. 2)
2005.

The Bill is drafted in a similar style to Part
IIA of the Racial Discrimination Act1975 (the RD
Act). However, unlike the RD Act, it imposes criminal liability on
acts motivated by religious, as well as racial hatred.

The RD Act covers race, colour, and ethnic or
national origin, and was enacted on the basis of the Commonwealth s
race, immigration and external affairs powers. Specifically,
Australia is a party to the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD).

The Commonwealth s power to legislate on
religious matters derives from its external affairs power.
Australia is a party to the International Covenant on Civil and
Political Rights (ICCPR) of which Article 18 enshrines the
principle of freedom of religion. Other ICCPR articles also support
the right to freedom of religion and belief:

advocacy of religious hatred which amounts to incitement to
discrimination, hostility or violence must be prohibited by law
(ICCPR article 20)

everyone is entitled to equality before the law and equal
protection of the law without discrimination on the ground of
religion among other grounds (ICCPR article 26), and

minority groups are entitled to profess and practise their own
religion (ICCPR article 27).(1)

At present, the Human Rights and Equal
Opportunity Commission (HREOC) administers a number of acts
including, amongst others, the RD Act and the Human Rights and
Equal Opportunity Commission Act 1986 (the HREOC Act). The
HREOC Act gives HREOC responsibility in relation to seven
international instruments ratified by Australia including the
ICCPR. Along with the ICCPR, other of those instruments form the
basis for protecting religious freedom including:

the Convention on the Rights of the Child (articles 14.1, 14.2
and 18.1)

the Declaration of the Rights of the Child, and

the Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief.

Although, with the exception of the Religion
Declaration, all these treaties have been ratified by Australia and
so bind Australia in international law, and though such
ratification has been found by the High Court to give rise to a
legitimate expectation that decision-makers do not violate the
provisions of these treaties,(2) these treaties do not
have the force of domestic law. The result is that, unlike the RD
Act which provides that the International Convention on the
Elimination of All Forms of Racial Discrimination is part of
Australian domestic law, there is no Commonwealth law of which the
main purpose is to prevent religious discrimination and ensure
religious freedom.

The ICCPR, the Religion Declaration, CROC and ILO
111 are all either scheduled or declared instruments under the
Human Rights and Equal Opportunity Commission Act. This gives HREOC
power to investigate complaints that these instruments have been
violated by or on behalf of the Commonwealth or a Commonwealth
agency but only in the exercise of a discretion or an abuse of
power. Where legislation requires rights protected by these
instruments to be set aside, HREOC can only advise the Parliament
that the legislation should be amended. HREOC can also advise
Parliament on action that should be taken to promote compliance
with these instruments. Human rights complaints which cannot be
resolved by conciliation do not proceed to a hearing and
determination but may, after appropriate inquiry, be made the
subject of a report to the Attorney-General for tabling in
Parliament. HREOC has no authority over the courts.

Beyond this,
HREOC states that the RD Act provides some scope, albeit limited,
to prevent discrimination on the basis of religion:

The RDA provides some limited protection against
discrimination on the basis of religion. If a religious group can
also be classified as an 'ethnic' group, the RDA may cover direct
and indirect discrimination and vilification under the racial
hatred provisions of the Act. Even if a religious group cannot be
classified in that way, the RDA arguably covers discrimination on
the basis of religion in certain circumstances such as indirect
race discrimination.(3)

HREOC also notes the difficulties involved in
achieving a balance between freedom of expression and freedom of
religion:

There is an inherent complexity in reconciling the
right to freedom of expression (ICCPR article 19) with the right to
freedom of religion and belief. However, freedom of expression is
not an absolute right. It carries with it special duties and
responsibilities and may be subject to restrictions necessary to
ensure respect for the rights and reputations of others and to
protect national security, public order, public health and/or
public morals. More generally, ICCPR article 5 limits the exercise
of all Covenant rights and freedoms by reference to the rights and
freedoms of others. Article 20 makes clear that freedom of
expression cannot justify incitement to religious
hatred.(4)

As there is no act to ensure religious
freedom, to fully effect Article 18 of the ICCPR, HREOC advocates
the enactment of a federal Religious Freedom Act so as to prevent
discrimination and vilification on the ground of
religion.(5)

It should be noted that Chapter V, section 116
of the Constitution specifically prohibits the Commonwealth from
legislating in respect of religion where, amongst other matters, it
would prohibit the free exercise of any religion. This would not
limit the Commonwealth s power to legislate with respect to
prohibiting violence motivated by religious hatred. Indeed, the
power has been interpreted to mean that religious belief cannot be
used to undermine society, as the protection provided by section
116 has been described by the High Court as:

not absolute. It is subject to powers and
restrictions of government essential to the preservation of the
community. Freedom of religion may not be invoked to cloak and
dissemble subversive opinions or practices and operations dangerous
to the common weal.(6)

At the state level, religious discrimination
has been made unlawful in Victoria, Queensland, Western Australia,
the Northern Territory, and the ACT. Religious freedom is protected
in the Tasmanian Constitution but it has never been judicially
considered.(7) The New South Wales
Anti-Discrimination Act 1977 does not make religious
discrimination unlawful but, like the RD Act (Cth), the definition
of race is broadly defined so as to include ethno-religious
background and therefore some acts of religious discrimination come
within its ambit. Victoria has gone further in legislating to
prevent religious hatred. The Victorian Racial and Religious
Tolerance Act 2001 is discussed later.

The Commonwealth has used other of its
constitutional powers to legislate to prevent acts of hatred or
violence which may have a religious or racial basis, namely the
telecommunications power (section 51(v) of the Constitution). In
the Crimes Legislation Amendment (Telecommunications Offences and
Other Measures) Bill 2005, the Government introduced new provisions
into Division 474 of the Criminal Code Act 1995. Under the
Criminal Code Act, it is now an offence to use a telecommunications
network for a serious offence (section 474.14), or to use a
carriage service to make a threat to kill or cause serious harm
even if the person being threatened did not fear that the threat
would be carried out (section 474.15). These offences are
punishable by a maximum penalty of 10 years and 7 years
imprisonment respectively.

It is also a crime to use a
telecommunications/carriage service in a way that reasonable
persons would regard as being, in all the circumstances, menacing,
harassing or offensive (section 474.17). This provision, punishable
with a maximum of 3 years imprisonment, is one of the charges
bought against some of those involved in the Cronulla
riot.(8) In determining what material is offensive, the
matters to be taken into account include the standards of morality,
decency and propriety generally accepted by reasonable adults
(section 473.4). The Bills Digest No 13 2004-2005, available at
http://www.aph.gov.au/library/pubs/bd/2004-05/05bd013.pdf,
provides commentary on these new provisions in the Criminal
Code Act 1995. Two points raised in that Bill Digest are
relevant to this discussion, namely whether:

it is appropriate to deal with racial and religious vilification
in a general provision dealing with content that may be morally
offensive, and

by not limiting the offence to any form of communication to the
public and so including private communications, the provisions
operate to restrict freedom of expression and invade privacy.

In
contrast, this Bill is for the specific purpose of dealing with
racial and religious hatred and would not apply to acts done in
private. However, what acts are private may not always be obvious.
This issue is discussed later in this Bill Digest.

Currently, under federal law, section 11.4 of
the Criminal Code Act 1995 makes incitement an offence
where a person urges the commission of an offence against the law
of the Commonwealth and intends that the offence incited be
committed. Therefore, it is necessary to prove a particular
intention and the act of incitement alone is not an offence unless
it relates to an offence.

A questionable aspect of the new sedition law
on incitement (section 80.2 of the Criminal Code) is that it
removes the requirement to prove that the person urging violence
has any particular intention, such as exists under section 11.4 and
which existed under the previous sedition laws (previous ss 24A to
24F of the Crimes Act 1914). Concerns were raised that
this could interfere with freedom of speech.(9) For
further discussion see Bill
Digest Anti-Terrorism Bill (No 2) 2005, No. 64 of
2005-2006.(10)

One of the limitations of section 80.2 is that
it relates only to incitement which threatens the peace, order or
good government of the Commonwealth. Dr Ben Saul of the University
of New South Wales acknowledges that those involved in the Cronulla
riot could be prosecuted under section 80.2 because of the scale of
the violence, the involvement of national racist organisations, and
the damage to Australia s international reputation .(11)
However, in supporting the Bill, he maintains that it is more
appropriate that incitement to racial or religious violence should
be prohibited under an anti-vilification law rather than controlled
or prevented under sedition or anti-terrorism laws.

While hate speech is repugnant, few Australians
think of such conduct as seditious, and even fewer would think that
it should be dealt with under terrorism laws.(12)

Linking the prevention of religious hatred
with anti-terrorism laws runs the risk of associating particular
religious or ethnic groups with terrorism.(13) Indeed, a
recent survey amongst Victorian children revealed that more than
half viewed Muslims as terrorists.(14)

This leads to a key issue: whether it is
appropriate to deal with religious and racial hatred by means of
the criminal law. In a paper title Are we crossing the Line? Forum
on National Security Laws and Human Rights , Dr Penelope Matthew
expressed great concern at the dramatic shift in how government is
choosing to address violence.

The new sedition offence of urging violence within
the community deserves greater thought and debate. In particular,
the quick move in the context of terrorism to criminal law, and
away from the framework of the Human Rights and Equal Opportunity
Commission with its emphasis on conciliation and education ought to
be debated properly, especially since the defences relating to the
sedition offences are narrower than those available under the
existing racial vilification provisions.(15)

It may be less likely that a prosecution would
be sought under the sedition laws in a situation like that in
Cronulla where arguably it was a matter more appropriately dealt
with at the State and local levels.

Dr Ben Saul also points out additional
disadvantages of section 80.2 of the Criminal Code: it is directed
at incitements which urge other groups to violence and
does not include incitements aimed at provoking individuals or
groups not mentioned in the new provisions nor does it criminalise
actual group violence.(16) This Bill would
address the first of these problems but not the latter.

Importantly, under the Bill there would be no
need to prove that incitement urged the commission of an offence
against Commonwealth law (as with section 11.4 of the Criminal
Code) or that it threatened the Commonwealth (as with section 80.2
of the Criminal Code).

Moreover, the Bill maintains the requirement
to prove intention in the form of intention to incite violence or
damage. This may limit concerns that these provisions might curtail
freedom of speech as, for example, a critical analysis of a
religion which did not intend to incite violence or damage would
not come within the ambit of the proposed provisions.

Victoria Racial and Religious
Tolerance Act 2001

The difficulties involved in legislating to
prevent racial hatred have been given prominence by developments in
Victoria. In 2001, Victoria introduced the Racial
and Religious Tolerance Act 2001 (RRT Act (Vic)) which is
a civil law aimed at preventing religious intolerance. The
operation of this Act, although it does not criminalise acts of
religious hatred, does provide insights into the difficulties
involved in defining the limits of acceptable behaviour so as to
determine what constitutes vilification. The RRT Act (Vic) is
comparable to the federal RD Act with the exception that
vilification on the grounds of religion is also a basis for
complaint.

The RRT Act (Vic) makes unlawful racial or
religious vilification if:

race or religion is a substantial ground for the
vilification

the act is not intended to be private and the parties to such
conduct did not reasonably expect it to be heard or seen by someone
else, and

it does not come within any of the exemptions, such as a
genuine artistic purpose engaged in reasonably and in good faith
(see sections 7 to 12).

Offences of serious racial or religious vilification can only
proceed with the written consent of the Director of Public
Prosecutions (see sections 24 and 25).

In the most notable case to date, Islamic
Council of Victoria v Catch the Fire Ministries Inc (Final)
[2004] VCAT 2510 (22 December 2004),(17) the Victorian
Civil and Administration Tribunal held that two pastors from the
Catch the Fire Ministries had breached section 8 of the RRT Act of
which subsection (1) provides:

A person must not, on the ground of religious
belief or activity of another person or class of persons engage in
conduct that incites hatred against, serious contempt for, or
revulsion or severe ridicule of, that other person or class of
persons.

Judge
Higgins held that the two pastors had vilified Muslims in a
seminar, newsletter and article. The acts of vilification included
comments that the Qur an promotes violence, killing and looting,
and do

mestic violence.

He ordered that the pastors must make public
apologies on their website, in their newsletter and in The
Age and the Herald Sun, and must not repeat the
comments anywhere in Australia.(18) He also
commented:

the legislation which was introduced by parliament
is comparatively new. Furthermore, it is legislation which is not
easy to interpret and apply. The circumstances where a person
desires to, and does express an opinion upon a subject matter
constitutes his prima facie right to freedom of expression. The
difficulty with regard to the legislation is that it is not an easy
task to determine whether an individual has gone too far, and has
breached the relevant provisions of the Act

Furthermore, there is no case law in this State
which assists a citizen to determine when the line has been crossed
.(19)

The pastors have been granted leave to appeal
to the Supreme Court of Victoria.(20)

Following the decision in Islamic Council
of Victoria v Catch the Fire Ministries Inc, many church
leaders expressed concern to the Victorian government that the
legislation was not achieving its aims; some leaders opposed the
legislation, others have supported it but suggested that amendments
needed to be made, and those defending the law stress that the act
deals with public behaviour not beliefs, nor what is said in
private.(21)

The Explanatory Memorandum notes that
there are two key differences between the Bill and the Victorian
RRT Act:

this Bill will only prohibit threats of and
incitements to violence on religious grounds, not a broader
prohibition on inciting hatred. This means that there is no doubt
that mere criticism of a religion will not be caught by this Bill,
and

this Bill only provides criminal offences not
civil remedies. This means that it will provide no opportunity for
religious groups to sue each other in civil courts or tribunals.
Only the police and prosecutors will bring prosecutions.

This Bill focuses on criminalising acts of
religious or racial hatred that result in physical injury or
property damage or any act of incitement which is reasonably likely
to lead to such acts. It does not criminalise mere criticism . As
such, it is narrower in its focus than the Victorian legislation
and arguably, will not be open to the criticisms that have followed
the introduction of the Victorian legislation. However, the
Victorian experience is useful in revealing the difficulties
drawing the boundary between criticism and vilification, a term
which, in the Victorian Act, includes conduct that incites hatred
whether or not that hatred manifests itself in acts of
violence.

United Kingdom religiously
aggravated offences and the Racial and Religious Hatred Bill

In 2001, the United Kingdom created new
religiously aggravated offences relating to wounding, assault,
damage, harassment and threatening or abusive behaviour, all
contained in the Crime and Disorder Act 1998 as amended by
the Crime and Security Act 2001. These measures require
that the basic offence be proved eg. wounding, that the offender
demonstrated hostility to the victim based on the victim s race or
religion, and that the offence was motivated wholly or partly by
that racial or religious hostility. If proven, an increased penalty
is imposed. The measures did not address incitement.

However, a Bill recently passed by the UK
Parliament does address incitement. It was the latest of three
attempts to criminalise religious hatred in the United Kingdom. All
met with considerable resistance. The first two attempts were
unsuccessful. The latest, the Racial and Religious Hatred Bill, was
only passed after significant amendment.(22) The Bill
sought to extend the racial hatred offences in Part III of the
Public Order Act 1986. The Explanatory Note explains that
the purpose was to extend the protection afforded mono-ethnic
religious groups such as Jews and Sikhs preventing racial
incitement to all faith communities that do not share a common
ethnic ground.

In its original form, the scope of the Bill
was very broad. The Explanatory Note stated:

The Bill also clarifies that for material to be
likely to stir up racial or religious hatred it need only be shown
that it was likely to be seen or heard by a person in whom it is
likely to stir up racial or religious hatred.(23)

Opponents argued that the broad drafting would
have allowed the prosecution of persons who had no intention of
inciting hatred. The Bill was heavily criticised on the basis that
it would curtail freedom of speech, in particular it would stifle
criticism and humour.(24)

The UK Government suffered a significant
defeat when the House of Lords forced amendments that mean only
threatening words will be banned, not those which are only abusive
or insulting and intention to stir up hatred must be proved;
proselytising, discussion, criticism, insult, abuse and ridicule of
religion, belief or religious practice would not be an offence.
(25)

For the purposes of new sections 62 and 63,
only acts of incitement that are done otherwise than in private
(section 62(1)) will attract liability. Such acts are those done in
a public place or within sight or hearing of people in a public
place or words, sounds images or writing to be communicated to the
public. Communicated to the public will include communication
through words, sounds, images or writing available to be accessed
on the internet. A public place includes any place to which the
public have an express or implied right of access.

Thus a communication accessible on a public
website would clearly come within the ambit of the incitement
offences. However, a personal email may not although it could be
argued that a personal email read in a public place i.e. some
workplaces, might be within the scope of sections 62 and 63. More
pointedly, in light of the recent race riot in Cronulla and the use
of text messages, ostensible private communications, e.g. from one
friend to another friend, may fall within the ambit of new sections
62 and 63. It may be a question of whether the sender intended the
message to be spread to persons unknown to him or her, or
alternatively whether the message was read in a public place and
made accessible to others and not just the intended recipient.

The view of the Federal Magistrates Court in
McLeod v Power [2003] FMCA 2 (14 January 2003) in its
application of the equivalent sections in the RD Act provides some
guidance whilst looking to Parliament to provide a clear framework
for implementation:

A private conversation does not become a public
one merely because it takes place in a public street or in a place
to which members of the public have a right to admission or access.
Again, whether or not an act occurs otherwise than in private
depends on the context of the situation and must be interpreted
from the overall intention of the legislature in enacting Part IIA
of the RDA.(26)

As previously noted, the Criminal Code Act
provides for prosecution of acts of incitement if a
telecommunications/carriage service is used and makes no
distinction between private and public communications. Therefore, a
private SMS message that incited religious violence could possibly
be prosecuted under the Criminal Code telecommunication provisions
but, depending on the circumstances, might not be covered by the
provisions in this Bill.

The recent publication of these cartoons in a
number of countries, including publication of some of the cartoons
by Queensland s Courier Mail, has caused offence to many Muslims.
How might publication be treated under the various laws discussed
above? The following provides a brief overview of possible courses
of action, and limitations.

The telecommunciations offences would be
relevant where the material were communicated via a
telecommunications/carriage service regardless of whether that
communication was public or private, for example, on a newspaper s
website or in a private email. For example, under section 474.17 of
the Criminal Code, the person could be found guilty of using a
carriage service to menace, harrass or cause offence. What the
person intended would not be relevant; the test is whether
reasonable persons regarded the material as menacing, harrassing or
offensive.

The general incitement offence (section 11.4
of the Criminal Code) would not be relevant because it is strongly
arguable that there was no intention to urge that an offence be
committed against the Commonwealth. Similarly, the incitement
provision in the anti-terrorism laws (section 80.2 of the Criminal
Code) would only be relevant if the cartoons threatened the peace,
order and good government of the Commonwealth.

Under the Victorian RRT Act, those who
published the cartoon could claim the conduct fell within one of
the section 11 defences, such as that the publication was for a
genuine artistic purpose or in the public interest (subsection
(b)(i)). Alternatively, they could claim that the cartoons were
published as a fair and accurate report of the events and matters
of public interest happening in other countries (subsection (c)).
These are strong defences but arguably the cartoons are so
inflammatory that based on the Catch the Fire case an
action under the RRT Act might be pursued. If successful, civil
remedies would apply.

The United Kingdom Racial and Religious
Hatred Act Act 2006 would apply but it would need to be proved
that hatred was likely to be stirred up (not just that it was
possible) and that this was the intention. However, the amendments
forced by the House of Lords make it very unlikely that publication
would constitute a criminal offence because the cartoons would need
to be threatening and clearly intended to incite hatred.

Under this Bill, it would be even more
difficult to prove intention than under the UK Bill because under
this Bill, there must be an intention to incite violence or damage
that was reasonably likely to incite violence or damage. It might
be difficult to prove that the purpose of the publication in
newspapers in Australia was intended to do this.

Schedule 1 of Item
3 inserts a new PartIVA
into the Crimes Act 1914. The new Part covers certain
offences based on racial and religious hatred.

New section 57 stipulates
that an act which is done:

(a)
for two or more of the following reasons - race, colour, religion,
or national or ethnic origin; and

(b)
that reason is a substantial reason, even if not the dominant
reason, for doing the act

will be taken to be done because of the person
s race, colour, religion or national or ethnic origin.

Those acts include threats to cause physical
harm because of race, colour, or national or ethnic origin
(new section 58), or religion (new section
59), and can result in a maximum of two years
imprisonment. Threats to property because of the same reasons are
also prohibited and can result in a maximum of one year
imprisonment (new sections 60 and
61).

Incitement to commit violence or damage
property on the basis of race, colour, or national or ethnic origin
(new section 62) or religion (new section
63) are acts also punishable by up to one year
imprisonment. It must be proven that such an act is reasonably
likely to incite violence or property damage. If an act is done in
private, these sections will not apply. An act is taken not to be
done in private if it:

causes words, sounds or images or writing to be communicated to
the public

is done in a public place, or

is done in the sight or hearing of people who are in a public
place.

The sections specifically provide that the
term communicated to the public includes but is not limited to
information accessible on the internet.

Concluding Comments

In addressing religious hatred, the Bill does
confront a form of divisiveness that has not previously been
directly addressed by Parliament. The Bill would directly implement
the relevant ICCPR articles into Australian law. The Bill would
also properly distinguish between anti-terrorism measures and the
prevention of violence motivated by religious hatred.

At a practical level, in attaching criminal
liability to acts of racial and religious hatred, it would provide
greater powers for law enforcement authorities to act on threats
and incitement before violence occurred where racial or religious
hatred was a substantial cause. Moreover, it recognises the
substantial reason for the crime without having to seek recourse to
other legislative options which do not and which impose other
requirements. For example, incitement must occur via a carriage
service (telecommunication provisions), or incitement must lead to
another Commonwealth offence (general incitement provision), or
incitement must pose a threat to the Commonwealth (sedition
provisions). Alternatively, the RD Act is not specifically directed
at preventing religious hatred and provides for civil remedies
only.

However, the Victorian experience and the
opposition to the United Kingdom Bill strongly suggest that there
needs to be widespread community consultation in order to reach an
appropriate balance or consensus. The anger over the publication of
cartoons offensive to many Muslims is a strong indication of how
such issues can become extremely divisive. Though this Bill is
drafted more narrowly than either of those Acts, the purpose of the
incitement provisions need to be made very clear in order to
alleviate any concerns that they may affect freedom of speech.

And if the Bill does proceed, to be effective,
there may need to be firmer guidance as to what constitutes private
and public communications. Most problematic is maintaining criminal
liability based on evidence of private communications under the
telecommunication provisions in the Criminal Code Act when under
this Bill, the same would appear not to be possible. It is
difficult to see how these different approaches could be
reconciled.

Katrina Gunn
17 March 2006
Bills Digest Service
Information and Research Services

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